Sunday, 17 May 2015

A.T. v Luxembourg: the start of the EU-ECHR story on criminal defence rights

On 9 April 2015, the European
Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. The judgment, which
will become final unless referred to the Grand Chamber, in finding a violation
of Article 6 of the European Convention on Human Rights (ECHR), develops the
principles established in the Salduz v Turkey. At the invitation
of Fair Trials International, third party intervener, it also takes into
account, for the first time, Directive 2013/48/EU on access to a lawyer in
criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator
of future convergence in this area.

Background

The applicant, A.T. was
questioned by police following surrender under a European Arrest Warrant (‘EAW’)
(as to the cross-border aspect, see the post-script). On arrival, he demanded a
lawyer. Police gave information (it is unclear what) which led him to accept to
be questioned without one. He denied the offences. He was then questioned again
before the investigating judge, with a lawyer present but (a) without having
had the chance to talk with that lawyer beforehand and (b) without the lawyer
having had sight of the case file prior to that questioning; again, he denied
the offences.

A.T. argued that his defence
rights had been breached as he had been denied access to a lawyer. The appeal
court, and then the Court of Cassation, rejected this, essentially finding that
he had agreed to be questioned without a lawyer and that no obligation arose to
remedy any prejudice caused. With local remedies exhausted, A.T. applied to the
ECtHR arguing a violation of Article 6 ECHR.

The legal territory: the Salduz
principle

The case was decided by reference
to the ECtHR’s 2008 judgment in Salduz v
Turkey, which established that a person charged with a criminal offence has
a right of access to a lawyer ‘as from the first interrogation by police’, and
that the rights of the defence are irretrievably prejudiced if incriminating
statements made in the absence of a lawyer are used for a conviction (para 55).
There are, however, some unanswered questions about this principle, some of
which are resolved here.

EU law in the mix

Salduz caused waves of litigation and reform in Europe, including
in older EU Member States like the UK and France. Yet, significant problems
remain in practice. This is the ECtHR’s summary of Fair Trials’ view on this in
A.T. v Luxembourg: ‘many suspects
encounter serious difficulties in the exercise of this right, in particular due
to legal or practical restrictions on the right of access to a lawyer, a
prevalence of supposed ‘waivers’ of the right whose reliability is
questionable, and ineffective remedial action by the courts to repair
violations’ (at 59).

With Member States required to
cooperate on the basis of mutual trust, such concerns are problematic. So, in
2009, the EU adopted a ‘Roadmap’, a ste-by-step plan to adopt directives on key
defence rights under the new legal basis of Article 82(2)(b) of the Treaty on
the Functioning of the EU, in order to strengthen mutual trust. After Directive
2010/64/EU on the right to interpretation & translation and Directive
2012/13/EU on the right to information, came the Access to a Lawyer Directive
(together, the ‘Roadmap Directives’), setting minimum standards on access to a
lawyer.

These Directives mostly attempt
to ‘codify’ ECtHR jurisprudence, but in doing so create new standards and – as
for the issue at stake here – in some places may anticipate the case-law. This
is significant. As Fair Trials argued in this case, the ECtHR can and does have
regard to such measures when developing its case-law, so the presence of the
Roadmap Directives raises significant possibility of cross-fertilisation
between EU law and the ECHR. A.T. appears to be a first example of this.

The A.T. v Luxembourg judgment

You cannot waive a right that you do not have

The judgment clarifies that since
there was in fact no legal right to a lawyer at the initial questioning – this
was the case at the time in Luxembourg for the narrow category of persons
questioned following surrender under a European Arrest Warrant (EAW) – the
purported ‘waiver’ of that right was inoperative (at 71): you cannot waive an
entitlement which the law does not confer upon you.

If access to a lawyer is denied, a remedy may be needed even in absence
of a confession

That being established, the ECtHR
found that the courts had infringed Article 6 ECHR by relying on the statements
A.T. made in that context and not taking any remedial action to repair the prejudice
caused by the restriction on A.T.’s right to a lawyer (at 72), e.g. excluding
his statements (see 73).

It is worth noting, in that
regard, that Luxembourg had argued that no violation of Article 6 arose because
A.T. had denied the offences (see 55). The logic is that if you don’t confess,
the absence of a lawyer does not make any difference. Fair Trials had argued
for a more protective line (see 61). Relying on the Article 12 of the Access to
a Lawyer Directive, which refers to ‘statements’, not simply confessions, we
noted that a person might compromise themselves in other ways, e.g. saying too
much or too little, speaking confusedly under pressure, damaging their
credibility vis-à-vis other witnesses etc. (see the actual intervention,
paragraph 41). The ECtHR followed this line, pointing out that A.T. had
‘changed his story’ during the proceedings and that his early statements,
though denials of the allegations, were held against him in that way (at 72).
This is a useful addition to a line of cases which had so far only dealt with mostly
with total silence, flat denials or clear confessions.

Access to a lawyer includes a right to prior consultation before
questioning

The judgment is, though perhaps most
notable for its emphasis on the importance of a consultation between lawyer and
client prior to questioning (at 86). This is a new development of the case-law,
complementing Navone v. Monaco and other cases
(79) establishing that there be should assistance during questioning. The legal assistance provided to A.T. during
the questioning, without such a prior opportunity, was not ‘effective’ and so
did not meet the requirements of Article 6 ECHR (at 89).

Roadmap aficionados will note
that in so finding, the ECtHR took account of Article 3(3)(a) of the Access to
a Lawyer Directive which articulates this requirement in black and white. This
is the first time one of the Roadmap Directives has been referred to in the
interpretation of the ECHR, and it raises questions as to possible convergence
and how the ECtHR is going to react to rulings from the Court of Justice of the
EU (‘CJEU’) on the Roadmap Directives (see comments below).

Access to the case file prior to questioning?

On one point, however, the ECtHR
will have disappointed some people. Lawyers in Spain, France and Luxembourg in
particular have been arguing for some time that legal assistance is not
effective if the lawyer does not have access to the case file prior to questioning,
in order to advise the client on an informed basis (more here).
The A.T. case gave the ECtHR a chance to say whether such a right arose under
the ECHR, and it – or this Chamber, at least – has taken a negative view.

What remains now on this point is
Article 7(1) of Directive 2012/13/EU, requiring access to documents which are
essential for challenging detention. The Paris bar reckons this is a key to the
police case file prior to questioning (see their pleading). The conservative
view, which seems closer to the text of the provision, sees this as relevant
only to judicial review of detention, and it appears the ECtHR shares the view
(see 80). But bearing in mind that (as in Luxembourg) the questioning may be
done by a judge who also makes a first decision on detention, the broader view
is credible. It seems likely that there will be further instalments in this
particular discussion.

Disposal: ensure a fair (re)trial next time

Disinformation about human rights
abounds, so it is worth reminding oneself what such an ECtHR judgment actually entails.
A.T., accused of serious offences, does not now walk free. The ECtHR did not
order his release (it cannot), or award damages. The Chamber, under ECtHR President
Dean Spielmann, simply indicated that Luxembourg should give him a retrial
compliant with Article 6 ECHR (97). Prosecutors had other evidence, besides the
statements made without a lawyer, with which to prosecute, so their case is not
lost. The retrial should simply be fair, in line with ECHR and EU norms.

Comments

Interaction between EU law and ECHR
has looked unappealing of late. Not long ago, in Tarakhel v. Switzerland, found for
the second time that execution of the EU’s ‘Dublin’ system for return of asylum-seekers
to other Member States would infringe human rights protected by the ECHR. The
CJEU, apparently miffed, then issued its alarming comments in Opinion
2/13, stating that, in obliging Member States to question each other’s
compliance with human rights despite EU law obligations of mutual trust, the
EU’s proposed accession to the ECHR would interfere with the EU legal order.

For 50 years, the CJEU has dealt
with individuals invoking Treaty rights in order to defeat protectionist trade
rules, enhance free movement and bring countries closer together in ever closer
union. Now all of a sudden the countries are trying to cooperate in justice and
home affairs, the individual is invoking rights to resist this, and the CJEU
appears concerned. If one adopts this rationale, the issue can be confined to
the cross-border sphere.

In the internal context, where
cooperation interests are not at issue, a more progressive trajectory can be
envisaged. When the CJEU’s Elgafaji judgment recognised that
Article 15(c) of the Qualification Directive was intended to provide an
additional layer of protection against refoulement
for those escaping situations of indiscriminate violence, the ECtHR quickly responded
in Sufi and Elmi v. UK that it was ‘not
persuaded’ the standard under Article 3 ECHR was any lower, going a step
further than it had in earlier cases. One can discern an element of upward
competition here.

What will happen with the Roadmap
Directives remains to be seen. The point decided in A.T. v Luxembourg – that one should have a chance to talk with
one’s lawyer before being questioned – appears uncontroversial and would have
been adopted anyway by the ECtHR. But nevertheless, it offers an example of EU
law setting a standard, which the ECtHR then finds exists in the ECtHR too. It
will, in that light, be interesting to see how the CJEU will treat new
questions without obvious answers in the existing-case-law of the ECtHR, and
what the reaction will be from Strasbroug.

The first case on the Roadmap
Directives (Case C-216/14 Covaci) is
pending, and the comments in the Advocate General Bot Opinion
of 7 May 2015 are interesting from that perspective: these ‘minimal rules’
should be seen as ‘irreducable’ fundamentals (32); they should be approached
expansively, as strengthening defence rights will strengthen judicial
cooperation (33); and, while the Roadmap Direcives respect national legal cultures,
national procedures will have to ensure their useful effect or face striking
down by the national courts, with the CJEU on standby to give preliminary
rulings (34). His conclusions on the specific case require a separate blog
post, but this proposed interpretative logic is notable: it suggests, as we noted
last year, that the counterpart to CJEU’s robust defence of mutual trust could
be a robust approach to the Roadmap Directives designed to strengthen that trust.
If the CJEU’s rulings are expansive, the ECtHR might then be slow to aim any
lower, with consequent impact outside the EU. But here one goes further into
the realm of speculation.

Of course, for anything to happen,
lawyers need to put the issues before the courts. Working with the Legal
Experts Advisory Panel (‘LEAP’), our pan-EU criminal law network, we offer free
legal
training, designed to share ideas across jurisdictions and encourage
innovative litigation. The ECtHR listened to LEAP in A.T., and we can help in national cases too (see our comparative
law opinions in cases before the Swedish Supreme Court (here)
and Belgian Court of Cassation (here)).
The idea is to participate in the developing EU-ECHR story and use it as an
opportunity to improve defence rights across Europe. If you would like to get
involved, contact Fair Trials’ Legal & Policy team.